Summary:

Ms. Cole began working at Bell Canada (Bell) in 1987. She worked in Bell’s Toronto call centre. In February of 2000, Ms. Cole took a maternity leave from work. Ms. Cole’s son was born in late February 2000. Unfortunately, her son was born with a congenital heart defect which required immediate surgery and would require corrective surgery in the future. Ms. Cole was advised by her physician that she continue to breast feed her son for as long as possible in order to strengthen his immune system. Ms. Cole followed her physician’s suggestion and by approximately 9 months old her son had settled into a routine of being breastfeed about three to four times a day (6:30am, 4:30pm, between 9:00-10:00pm and occasionally between 2:00-3:00am). Upon returning to work, Ms. Cole first requested one hour of “personal granted unpaid” (PGU) time off work per day in order to nurse her son In response to this request. Ms. Cole was informed that her request “could not be honoured.” Ms. Cole then requested that her shifts always end by 4:00pm, in an effort to prevent the reoccurrence of mastitis. After submitting medical documentation related to mastitis, Ms. Cole was given set shifts from 8:00am-4:00pm for one year. Ms. Cole was given set shifts not because of her need to breast feed her child but rather because of her “disability,” mastitis. After the one year had elapsed Ms. Cole was told by the Disability Management Group at Bell (DMG) that she would need to complete a new form to ask for an extension of her set shifts. Ms. Cole and her physician completed the new form but her claim for accommodation on medical grounds was no longer supported by the DMG. In this case it was found that Ms. Cole was differentially treated in the course of her employment, on the basis of her sex.

Question(s) to be Determined:

Does differential treatment with respect to breastfeeding constitute discrimination on the basis of sex and family status?

Is there prima facieevidence establishing that Ms. Cole was differentially treated in the course of employment, on the basis of her sex?

Did Bell establish that it made every possible accommodation short of undue hardship?

Findings:

1. Does differential treatment with respect to breastfeeding constitute discrimination on the basis of sex and family status?

YES

2. Is there prima facie evidence establishing that Ms. Cole was differentially treated in the course of employment, on the basis of her sex?

YES

3. Did Bell establish that it made every possible accommodation short of undue hardship?

NO

Reasoning:

1. Citing previous human rights cases, it was decided that differential treatment with respect to breastfeeding does constitute discrimination on the basis of sex. “The British Columbia Human Rights Tribunal, in Poirier v. British Columbia (Ministry of Municipal Affairs, Recreation and Housing) (1997), 29 C.H.R.R. D/87 (B.C.H.T.), addressed the question of whether differential treatment of a woman based on the fact that she is breastfeeding is a form of sex discrimination. The Tribunal referred to the Supreme Court's decision in Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219, in which Chief Justice Dickson stated that the capacity to become pregnant is unique to the female gender. A distinction based on pregnancy is therefore a distinction based on sex. The B.C. Tribunal in Poirier held that the same reasoning applies to breastfeeding as well. The capacity to breastfeed is unique to the female gender. Consequently, discrimination on the basis that an individual is breastfeeding is a form of sex discrimination. I agree with this interpretation” (para 50).

2. It was found that Bell never fully addressed Ms. Cole’s request, as a mother, for a fixed shift end that would enable her to breastfeed her son at his afternoon feeding time. Based on this evidence, a prima facie case of differential treatment based on Ms. Cole's sex has therefore been established.

“In their working lives, women face particular challenges and obstacles that men do not. A woman who opts to breastfeed her baby takes on a child-rearing responsibility which no man will truly ever face. In order for a working mother to bestow on her child the benefits that nursing can provide, she may require a degree of accommodation. Otherwise, she may end up facing a difficult choice that a man will never have to address. On the one hand, stop nursing your child in order to continue working and make a living for yourself and your family. On the other hand, abandon your job to ensure that your child will be breastfed. This dilemma is unique to women employees and results in their being differentiated adversely, in the course of their employment. It has the potential to create precisely the type of obstacle that would deny women an "opportunity equal to others, to make for themselves the lives they are able and wish to have" (s. 2 of the Act)” (para 61).

It was further stated that “Bell never addressed this request as that of a nursing mother. Instead, by referring the matter to the DMG, Ms. Cole was treated as an ill or disabled employee. She was required to visit her physician repeatedly to obtain medical notes and reports. Thus, not only did Bell strongly discourage her initial request for PGU but when she significantly attenuated her request to merely a guarantee of a 4:00 p.m. shift end, Bell subjected her to conditions and specifications (i.e. the filing of medical reports to justify nursing) that a male Bell employee would obviously never have been subjected to. Her status as a nursing mother was integral to her requests, and the denial of these requests had a unique impact on her as a woman, and more specifically, as a nursing mother. As such, there is a clear nexus between the adverse treatment that she received and her status as a woman” (para 63).

3. In this particular case it was stated that Bell failed to adequately accommodate Ms. Cole. “In the present case, not only has Bell failed to establish that it made every possible accommodation short of undue hardship, but there is no evidence indicating that Bell ever tried to accommodate Ms. Cole's request as a mother to breastfeed her child. Her initial request for PGU time off work was strongly discouraged. Her subsequent petition to receive a guaranteed 4:00 p.m. end of shift was not properly addressed. While it is true that in fact she was assigned fixed shifts for the following year, it was not to accommodate Ms. Cole's needs as a mother, but rather as a disabled or ill person. As I have already explained, this mischaracterization later resulted in the potential loss of her guaranteed shifts and forced her to repeatedly return to her physician to obtain one new medical report after another” (para 79).

“Not only is there an absence of any attempt to accommodate Ms. Cole as a mother, but the evidence put before the Tribunal suggests that accommodating Ms. Cole with a guaranteed shift end at 4:00 p.m. would not have imposed any hardship on Bell whatsoever, let alone undue hardship. Given her seniority, she was entitled to those shifts on all but a handful of days each year” (para 81).

Remedies:

In this case Ms. Cole sought a number of remedies including, preventative measure to avoid future discriminatory practices, compensation for pain and suffering, special compensation pursuant to s. 53(3) of the Act and lost income.

(i) An order pursuant to s. 53(2)(a) of the Act

“Ms. Cole is seeking an order, pursuant to s. 53(2)(a) of the Act, that Bell take measures to prevent the discriminatory practice that occurred in the present case from recurring in the future. She points out that Bell does not inform its female employees who are returning to work after their maternity leave of the possibility of requesting accommodation from the employer in order to breastfeed their children” (para 86).

“I therefore order Bell to take measures, pursuant to s. 53(2)(a) of the Act, in consultation with the Commission on the general purposes of the measures, to prevent the discriminatory practice cited in this case or a similar practice from occurring in the future. These measures shall include the establishment of a policy relating to requests by Bell employees for accommodation with regard to breastfeeding that is consistent with the findings in this decision. Bell employees, and particularly parents who are the most likely to be directly affected by the policy, should be made aware of the substance of the policy in an effective manner” (para 89).

(ii) Compensation for pain and suffering (s. 53(2)(e)

In this case Ms. Cole requested that she be compensated $20,000 for pain and suffering. In deciding the amount paid to Ms. Cole a number of factors were considered. The humiliation and stress which Ms. Cole experienced as a result of the discriminatory practice were acknowledged. These experiences were weighted against the fact the “from May 2001 until February 2003, when Ms. Cole left HVQ, she was never required to actually work any shift that was scheduled to extend beyond 4:00 p.m. There were a few occasions when, in order to achieve this result, Ms. Cole had to use her sick leave days or switch shifts with other employees, but the fact remains that she never worked a shift that was scheduled to end beyond 4:00 p.m” (para 97). Given all of the factors Bell was ordered to pay Ms. Cole $5,000 as compensation for pain and suffering.

(iii) Special compensation pursuant to s. 53(3) of the Act

“Ms. Cole seeks an award of special compensation pursuant to s. 53(3) of the Act. She alleges that Bell recklessly engaged in the discriminatory practice against her. By offhandedly refusing her request for as little as 15 minutes PGU time, without any further assessment of her situation, and in the second phase, mischaracterizing her situation as that of a disabled or ill employee and compelling her to return repeatedly to her physician, Bell acted recklessly” (para 99).

It was found that Bell recklessly engaged in discrimination of Ms. Cole. “Bell's subsequent decision to treat Ms. Cole's case as a medical matter was also taken without any consideration of whether breastfeeding should be treated in the same manner as a disability or illness in the first place. This decision gave rise to a number of unfortunate consequences for Ms. Cole, including the inconvenience of numerous unnecessary trips to her physician” (para 101). “ Taking into account all of the circumstances in this case, including the fact that Bell's discriminatory actions were not truly "wilful" nor malicious, I order Bell to pay Ms. Cole $2,000 as special compensation under s. 53(3)” (para 102).

(iv) Lost income

Ms. Cole requested lost wages for three different situations all arising from the discriminatory treatment which she received. “The first relates to the occasions when she had to leave work without pay in order to meet her physician and obtain the medical notes and forms that the DMG had requested. The second form of claim is in regard to the time spent by her away from work to attend the hearing into her complaint as well as the two unsuccessful mediation sessions that preceded the hearing. Finally, she is also requesting compensation for the three days that she spent preparing for the hearing (one of which was a work day that she took as PGU time off without pay)” (para 103). Ms. Cole was only awarded compensation for the wages she lost while attending her physician’s office to obtain the requested medical documentation.

(v) Interest

“Interest is payable in respect of the monetary awards made in this decision (s. 53(4) of the Act). The interest shall be calculated in accordance with Rule 9(12) of the Tribunal Rules of Procedure, but given the relatively tardy filing of Ms. Cole's human rights complaint in relation to the discriminatory practice, the interest shall run from the date of the complaint's filing, April 14, 2004” (para 106).